M. U. SHAH, J. M. SHELAT, J.

( 1 ) THIS is a petition for a writ of certiorari or any other appropriate writ quashing the reference dated July 29 1961 made under sec. 73a of the Bombay Industrial Relations Act of 1946 by the second Respondent Association to the Industrial Court and the order made by the Industrial Court negativing certain preliminary issues raised by the petitioner Association and for restraining the Industrial Court from proceeding further with the reference. The reference was made in the following circumstances:-

( 2 ) UNDER the standing orders settled under the Bombay Industrial Relations Act 1946 which are determinative under section 40 (1) of the Act in respect of matters enumerated in Schedule I thereto including Conditions procedure and Authority to grant Leave and in particular standing orders 11 and 12 and binding on the petitioners and the 2nd Respondent Association it was provided that service for a total period of 12 months in a textile mill should qualify an operative for a total period of one months leave with or without pay according to the terms of the contract custom or usage of the mill and grant of such leave should depend on the exigencies of the mill and should be at the discretion of the company. These standing orders also provided that an operative may be granted casual leave of absence with or without pay not exceeding 10 days in the aggregate in a calendar year. Such leave however should not be for more than 3 days at a time except in case of sickness and was intended to meet special circumstances which could not be foreseen. On April 21 1961 the 2nd respondent Association gave a notice of change to the petitioners desiring that the employees employed in the member mills of the petitioner-Association excluding the clerical technical and supervisory staff be granted benefits of different types of leave with wages such as casual privilege and sick leave. Since the parties could not arrive at any agreement the matter was taken in conciliation. The 2nd respondent Association obtained a certificate of failure of conciliation and thereafter made a reference of the dispute to the Industrial Court under section 73a of the Bombay Industrial Relations Act 1946

( 3 ) BEFORE the Industrial Court the petitioner-Association raised certain preliminary issues. These were;1 Whether the Bombay Industrial Relations Act 1946 was validly in force in the cotton textile industry in Ahmedabad area in view of the Industrial Disputes Act 1947 and its subsequent amendments ?2 (a) Whether the amendments made in Schedules I and II of the Act in the matter of leave by notifications of the State Government were illegal ultra vires and unconstitutional ? (B) If so whether the reference was legally competent ?3 Whether sec. 73a of the Act is illegal ultra vires and unconstitutional ?4 Whether the provisions of leave with wages in the Factories Act 1948 operated as a bar to this reference ?5 Whether this reference was premature and incompetent in view of the five years period having not expired as per the Wage Board recommendations implemented by a consent award between the parties ?since these issues raised constitutional questions as regards the validity of the reference under sec. 73a of the Act notice was issued to the State Government and the Government was heard. The Industrial Court repelled the contentions raised by the petitioner-Association and held inter alia that the reference to it was a valid one and it had jurisdiction to decide it. The present petition disputes the correctness of that order on various contentions raised therein Before we proceed to deal with those contentions it is necessary to bear in mind a few dates.

( 4 ) THE Bombay Industrial Disputes Act XXV of 1938 was enacted in 1938 and received the assent of the Governor-General on February 24 1939 Sec. 2 (1) provides that sections 1 and 2 shall extend to the whole of the Province of Bombay. It also provides that the Provincial Government may by

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